1969 P Cr (PLP)

The above contentions of the counsel for the appellants seem to me to be well‑founded, keeping out of view then the statements and the retracted confession and the recovered articles aforesaid, there is little evidence to connect the appellants with the crime. The finding that they were last seen with the deceased is not supported by the evidence on the record; further P. W. 3 denied in the Sessions Court that the deceased had told him that he was going to stay with the father of appellant Khuda Bux contradicting thereby his own statement recorded under section 164, Cr. P. C. vide in this connection Mamand and others v. Emperor (A I R 1946 P C 45). I do not think, therefore, that the evidence in the case is such as can sustain the conviction of the appellants. I accordingly allow the appeal, set aside the conviction and the sentence of death passed upon the appellants under section 302/34 and direct their release. SHAHABUDDIN, J.‑I agree that this appeal should be allowed for the reasons contained in the judgment of my brother Cornelius, to which I have nothing to add. CORNELIUS, J. This appeal by Khudabux and Iddo calls in questions their conviction under section 302/34, P. P. C. for the murder of one Rahimdad. Each appellant has been sentenced to death. The convictions and sentences were confirmed on appeal by the Chief Court of Sind. The evidence in the case is of the most meagre character, and is, in my opinion, entirely insufficient to sustain the conviction. The body of the deceased Rahimdad was discovered lying in a jungle an the 23rd June 1951. The case is that he had left his home on the previous day carrying with him a sum of money said by his brother Rahimdino to be Rs. 500, for the purchase of goats. No money was found on the body. Acting or information, the Police secured the accused Khudabux who allegedly made an extra judicial confession to certain village notables and took the police to the house of the co‑accused Iddo. There, certain recoveries were made of articles which the prosecution alleges were taken from the possession of the deceased. Sums of money were recovered from both men. The sum taken from Khudabux was Rs. 180 and that taken from Iddo was Rs.

28. There is nothing to indicate how the balance of money which Rahimdad took from his home was spent. These recoveries are said to have been made on the 27th June 1951, the day on which both the accused persons were allegedly arrested. On the following day, they were produced before the Resident Magistrate of Bathoro, and each of them made a statement. The first to make a statement was Khudabux and all he said was that he took Rahimdad to Iddo who owned some goats, which Rahimdad wished to purchase. The three men went out to the jungle to inspect the goats. Without any pre‑arrangement, Iddo struck a hatchet blow on the neck of Rahimdad from behind, and Rahimdad fell down and died. Khudabux was surprised by this act, but Iddo told him to keep quiet and proceeded to remove the sum of Rs. 208 from Rahimdad's person of which he gave Rs. 28 only to Khudabux and kept the rest himself. Neither the trial Court nor the Chief Court has regarded this statement as a confession for lack of inculpatory character. When Khudabux was examined in the Court, he admitted that he had made it, but under the influence of the police who had beaten him for two days prior to the making of the statement. In the course of this statement, Khudabux in answer to a question declared to the Resident Magistrate that he was arrested at 8 p. in. on the 27th June 1951 in the village of Lal Bux Ganjo. If the time given be correct, it is certainly remarkable that on the same day i.e. in the remaining four hours of the 27th June 1951, Khudabux should have made disclosures, should have led the police to the house of Iddo where recoveries were made, anti thereafter should have taken them to his own house and produced further articles there. Nothing in the evidence of the recover witnesses indicates that all this was done at night. On the contrary, Iddo's arrest according to his confession was made at 8 a.m. on the 27th June 1951, which is some 12 hours before the time given for the arrest of Khudabux, and. thus contradicts the prosecution story. The doubt thus created is emphasised and made entirely real by an admission made in examination‑in‑chief by Murid P. W. 10, a recovery witness. He stated that he attended the examination of the corpse of Rahimdad by the police, which took place on the 24th June 1951. He went on to say that the next day i.e. the 25th June 1951, the police came to his village accompanied by the two accused persons. If the accused persons were with the police on the 25th June 1951, it becomes obvious that the statement which they made to the Resident Magistrate that they were only arrested on the 27th June 1951 were statements inspired by the police, i.e. made under instructions, to give the impression that there was no time interval in which these men could have been coerced into making confessions. Both of them say that they pleaded before the Resident Magistrate that they had been beaten and even showed their injuries. The Resident Magistrate has merely noted that one of them namely Khudabux bad a mark of a healed injury on his left thumb. This person, i.e., the Resident Magistrate, did not appear at the sessions trial. He died after making a statement before the Committing Magistrate, where he declared that the confessions were recorded in a regular manner, that they were voluntarily made, and that neither accused person complained of threat or coercion. It is a fact however that after the recording of the confessions, the accused persons were handed back to the police although as far as can be seen, no further investigation remained to be carried out, and the prisoners should have been committed to the judicial lock‑up. There is thus strong ground for thinking that the accused persons were irregularly under arrest for three days before they were produced before the Magistrate. One sign of artificiality in the confessions is the false statement made by each accused person that he was only arrested on the 27th June. Another sign appears in Khudabux's confession, namely, the statement that he was only given Rs. 28 by Iddo. This indicates reliance rather on recollection of what he was told to say, than upon what he actually saw or experienced, for the sum recovered from him was not Rs. 28, but Rs.

180. It was from the other accused person that Rs. 28 only were recovered. In terms of section 24 of the Evidence Act, 1872, a confession is irrelevant in a criminal proceeding if the making of the confession appears to the Court to be the result of, inter alia, a threat sufficient to induce the person making the confession to believe that by doing so he would avoid an evil. There is good ground for thinking that the confessions in the present case are subject to such a taint, and therefore, both the confessions must be regarded as irrelevant. This aspect of the matter was not considered by the Chief Court when the confession made by Iddo was used in evidence against him. Iddo's confession was in different terms from that of Khudabux. He said that Khudabux struck the first hatchet blow on the deceased neck, and then he himself delivered a hatchet blow also on the neck whereupon Khudabux removed Rs. 208 from his person while Iddo took the hatchet, razor, knife and ajrik of the deceased. Later Iddo and Khudabux fought over the money and Iddo got only Rs.

28. Khudabux "gave him" the hatchet, ajrik, knife and razor which he himself had removed from the corpse. When examined at the trial Iddo declared that the police had beaten him and forced him to make the confession which was not true. The confession thus having been retracted, the learned Judges of the Chief Court acted with propriety in looking for corroboration from independent sources before accepting the confession as sufficient to sustain the conviction. They found this corroboration in certain evidence which they held was that "he was last seen in the company of the deceased" and secondly that he had produced certain articles belonging to the deceased soon after the murder. The appreciation by the learned Judges of the evidence regarding the movements of Rahimdad shortly before his death is plainly incorrect. There is no evidence to show that when last seen alive, Rahimdad was in the company of Khudabux. The witnesses on the point are Dhanidino and his father Sajan. The former had said in a statement under section 164, Cr. P. C. that when he last saw Rahimdad, the latter told him he was going to Khudabux's house, but he denied this at the trial. Sajan's statement was that learning from Dhanidino that Rahimdad was staying with Khudabux (an allegation which Dhanidino does not support at all) he went to Khudabux's house and learnt that Rahim dad had been there but had gone away. This is mere hearsay, and neither statement avails to support the conclusion of the learned Judges. This is so far as Khudabux is concerned; as to Iddo, there is not a vestige of evidence to show his presence in Rahimdad's company at or about the time of the latter's death, except Khudabux's "confession." As for the recoveries from Iddo's possession, they are of no value unless the articles recovered are satisfactorily shown to have been carried by the deceased at the time of his death. The solitary witness on the point is Rahimdino, brother of the deceased, who is said to have been present when the recoveries from Iddo were made, and to have recognised them at once. At the trial, however, his evidence of identification was given in a most halting and half‑hearted manner. He appeared for examination three times. On the first occasion, he identified only the ajarak. On the second occasion, he identified the knife and razor, and also a pair of shoes allegedly found in a bush near the scene of the crime on the 28th June 1951 and pointed out first by Khudabux and next by Iddo. The shoes were admittedly of common pattern, and the learned Judges have held that the shoes have not been identified. Their finding, on the same evidence, that the razor, knife and ajarik, none of which is alleged to bear any particular distinguishing mark, were duly identified cannot be unaffected by this conclusion. It is clear that the evidence of the recoveries is of no value, as corroboration of the alleged confession. But the confession itself is irrelevant, for the reasons already given. In the result, on a proper analysis, the case proves to be one of no evidence, and consequently the conviction of the appellants Khudabux and Iddo cannot be sustained. I would therefore allow this appeal and acquit them. Appeal accepted.